Separation in Singapore Via Deed of Separation and More
In Singapore, separation is a popular solution for couples trapped in troubled marriages. Spouses may enter into a separation as and when they want because the laws regulating spousal relationship do not require cohabitation.
The sole ground for divorce is irretrievable breakdown of the marriage, and there are 4 legally defined ways of proving this irretrievable breakdown: adultery, desertion, unreasonable behaviour, or separation for a period of time. Separation is often the preferred option when neither party is at fault for the breakdown of the marriage.
There are 3 main ways for spouses to bring about separation:
Couples are free to separate informally by living apart any time they wish to do so. However, in order for separation to count as a valid ground for divorce, the separation must be valid. Separations may be valid if either or both parties intend for it to lead to divorce. With an informal separation, physical separation is usually required.
Physical separation may be present even if the couples live under one roof, provided that there is a clear disruption of marital or sexual relations. Also, the parties must generally not have performed other typical spousal duties, such as cooking or cleaning for each other.
Deed of Separation
In Singapore, a Deed of Separation is a formal, legally binding document signed by a married couple that contains the terms of their arrangement to live separately. A deed of separation is also known as a separation deed.
There are two main categories of clauses in a Deed of Separation:
- Terms relating to the separation itself. This includes the date when the parties separated, the living arrangements of both parties, and the agreement that both parties will live separately from each other.
- Terms on financial arrangements between the spouses and other terms. This has to be mutually agreed upon. Examples of this would be whether there should be any division of matrimonial assets (who gets the car), maintenance terms concerning the children’s living arrangements (who gets to care for the child, and how much access the other spouse gets).
In this sense, a deed of separation is not too different from a divorce agreement. A lawyer is usually hired to draft the deed of separation, although an oral agreement or a written document composed by the couple may still hold water as a separation agreement.
It should be noted that a Deed of Separation can be invoked only with both spouses’ consent, and need not be registered with any government department or court. However, the Family Justice Courts can set aside terms of the Deed of Separation that it considers to be unfair or improper. That said, this will not apply where the court has officially sanctioned the Deed of Separation.
While signing the Deed of Separation means that both parties will live apart, but it does not change the legal state of their marriage – both parties are still considered legally married. For either party to remarry, a divorce is necessary. Nonetheless, a Deed of Separation is useful as a precursor to divorce, in the sense that it prepares both parties for the realities of divorce. It is also helpful for spouses who have hope of reconciling in the future and don’t want to divorce just yet.
Couples may also file for a court order for judicial separation, pursuant to section 101(1) of the Women’s Charter. This course of action may be more onerous, because of the need to prove the irretrievable breakdown of the marriage on the grounds of adultery, unreasonable behaviour, or desertion.
However, you might want to file for judicial separation if you believe your spouse will not comply with the terms of a deed of separation. This is because failure to comply with a court order (for judicial separation in this case) can constitute an offence.
For more information, read our other article on judicial separation in Singapore.
Commission of Marital Rape Even During Separation
By force of section 375(4) of the Penal Code, a husband can be found guilty of raping his wife if the act of penetration was done without her consent. It does not matter whether the couple were living together or separately at this time, or whether they were still married.
The penalties for marital rape in Singapore are a jail term of up to 20 years, and either a fine or caning.
Similarly, a woman can be found guilty of sexually assaulting her husband under section 376 of the Penal Code if she sexually penetrates him (such as through using an object, or causes him to sexually penetrate her, without his consent. The maximum penalties are also a jail term of up to 20 years, and either a fine or caning.
Outcome of Separation
The separation can end in either reconciliation or divorce. The eligibility conditions for divorce continue to apply if at least one spouse eventually decides to file for divorce. 3 years of separation is required for divorce with both parties’ consent, while 4 years of separation is needed for divorce without consent.
Should you require any guidance on the costs of hiring a divorce lawyer, please refer to our Divorce Fee Guide.
Couples may also wish to seek marriage counselling before they conclude on divorce.
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